Ford v. Inc. Town of N. Dex Moines

• Decision Date: 29 May 1890
• Parties: FORD v. INCORPORATED TOWN OF NORTH DES MOINES ET AL. WESTON ET AL. v. INCORPORATED TOWN OF NORTH DES MOINES ET AL. FRANZ ET AL. v. INCORPORATED TOWN OF NORTH DES MOINES ET AL. SMITH ET AL. v. FORD. SMITH ET AL. v. WESTON. SMITH ET AL. v. MARKHAM. SMITH ET AL. v. KENNEDY. SMITH ET AL. v. YEOMAN. SMITH ET AL. v. MOGELBERG ET AL.
• Court: Iowa Supreme Court

80 Iowa 626

45 N.W. 1031

FORD

v.INCORPORATED TOWN OF NORTH DES MOINES ET AL.

WESTON ET AL.

v.INCORPORATED TOWN OF NORTH DES MOINES ET AL.

FRANZ ET AL.

v.INCORPORATED TOWN OF NORTH DES MOINES ET AL.

SMITH ET AL.

v.FORD.

SMITH ET AL.

v.WESTON.

SMITH ET AL.

v.MARKHAM.

SMITH ET AL.

v.KENNEDY.

SMITH ET AL.

v.YEOMAN.

SMITH ET AL.

v.MOGELBERG ET AL.

Supreme Court of Iowa.

May 29, 1890.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

On the 23d day of May, 1887, the incorporated town of North Des Moines by its council adopted a resolution by which it was determined that what was known as “Sixth Street” in said town, from the north end of Sixth-Street bridge, should be graded, curbed, and paved. In pursuance of this resolution, the paving of said street was awarded to J. B. Smith & Co., as contractors. The street was paved with cedar blocks, and it is claimed by said incorporated town and by said J. B. Smith & Co. that the abutting property, and the owners thereof, should be charged with the payment of said improvement. This is the ultimate question to be determined in all of the above cases. The appellants in all of the cases are owners of abutting property. In the first three cases the owners therein named seek to restrain and enjoin the assessments made upon their lands. In the other cases the said J. B. Smith & Co. seek to foreclose certain certificates issued to them by the town for the paving, and the defendants thereto are the owners of the abutting property. The district court held that the assessments made for the paving were valid obligations, and rendered judgments and decrees accordingly. The owners of the abutting property appeal.Cole, McVey & Clark and James M. & Geo. E. McCaughan, for appellants.

Gatch, Connor & Weaver and Philips & Day, for the town of North Des Moines.

Cummins & Wright, for J. B. Smith & Co.

ROTHROCK, C. J.

1. The town of North Des Moines was organized as a municipal incorporation in the year 1880. In the year 1886 certain proceedings were had for the purpose of extending the limits of the incorporation. The paving which is in controversy was laid upon that part of the territory which was annexed to the town by the extended limits. A great many questions are presented in appellants' arguments which involve the validity of the proceedings for extending the limits, as well as the action of the town council in the matter of ordering the street to be paved, and assessing the cost thereof against the owners of the abutting lands and lots. The annexation of the additional territory was made under chapter 10 of the Code, from section 421 to section 429, inclusive. It is unnecessary to set out these sections of the law in full. It is sufficient to say that it is therein provided, in substance, that, whenever the inhabitants of any part of any county not embraced in any incorporated city or town shall desire to be organized into a city or town, they may apply to the district court by petition in writing, signed by not less than 25 of the qualified electors of the territory to be embraced in the proposed incorporation, and that when such petition is presented the court shall forthwith appoint five commissioners, who shall call an election of the voters residing within the said territory, of which election notice shall be given by publication in a newspaper published within said territory, if any there be, and by posting notices of the election; and, if a majority of the ballots cast at said election be in favor of such incorporation, the clerk of said court shall give notice of the result, and a certified copy of all of the papers and record entries shall be filed in the recorder's office of the county and in the office of the secretary of state, and when such copies are filed, and officers are elected and qualified for such city or town, the incorporation shall be complete. These are the proceedings necessary to be taken to form an original incorporation. It is further provided that, when the inhabitants of part of any county adjoining any city or town shall desire to be annexed to such city or town, they may apply by petition in writing to the district court of the proper county, signed by not less than a majority of the electors residing within the territory proposed to be annexed; and that like proceedings shall be had on such petition as are prescribed for the organization of an incorporated town or city, so far as applicable.

It is claimed in behalf of appellants that the sections of the Code above referred to are unconstitutional and void. If this view be correct, then both the original incorporation of the town of North Des Moines and the annexation proceedings are invalid and void. The ground of the argument is that the creation of a municipal corporation is an exercise of legislative power, and that such power cannot be delegated to the courts. Upon the general proposition that exclusive legislative power cannot be delegated to courts or to any other authority, there can be no dispute. It is for the general assembly alone to exercise purely legislative power. Santo v. State, 2 Iowa, 165;State v. Beneke, 9 Iowa, 203;Weir v. Cram, 37 Iowa, 649;People v. Carpenter, 24 N. Y. 86;People v. Nevada, 6 Cal. 143;Galesburg v. Hawkinson, 75 Ill. 156;Sanborn v. Commissioners, 9 Minn. 273, (Gil. 258.) But section 30 of article 3 of the constitution of the state provides that “the general assembly shall not pass local or special laws in the following cases: * * * For incorporation of cities and towns.” And section 1 of article 8 provides that “no corporation shall be created by special laws, but the general assembly shall provide by general laws for the organization of all corporations hereafter to be created, except as hereinafter provided.” In obedience to these provisions of the constitution, no municipal corporation has been organized under a special charter by any act of the legislature since the adoption of the constitution, and many of those which were organized before that have since abandoned their special charters, and incorporated under the general law; so that there are now but three or four cities in the state acting under special charters.

By an act of the seventh general assembly, passed in 1858, municipal corporations were required to be organized by proceedings in the county court in some respects similar to the proceedings now required to be had in the district court. That act and laws of a similar nature have been in force more than 30 years, and in numerous cases in this court their validity has been recognized; and we may say further, that, of the authorities cited by counsel on the question now under consideration, we think that the case of Shumway v. Bennett, 29 Mich. 451, is the only one which supports the claim made by counsel; and it is provided by section 1 of article 15 of the constitution of Michigan that “corporations may be formed under general laws, but shall not be created by special act except for municipal purposes.”

If the legislature of this state may not by general laws prescribe rules and regulations for the organization of municipal corporations, and provide means for carrying the laws into effect by conferring upon some court or commission or board, or some other agency, the authority to ascertain and determine when the general provisions of the law are complied with, so as to effect the organization of the corporation, then no municipal corporation can be created. And it may well be questioned whether, under the present law, any legislative or even judicial power is conferred upon the district court. When a petition has been presented, signed by not less than a majority of the electors residing within the territory proposed to be annexed, the court has no discretion, judicial or otherwise. The statute requires that in such case “the court shall forthwith appoint five commissioners,” who shall call an election, and, when the election has been held, the result determines the question. This is not a question for the court. The court has the authority to appoint the commissioners of election, and nothing more. The question of incorporation or annexation, as the case may be, is determined by the electors.

In our opinion, the objection that the statute under consideration is unconstitutional cannot be sustained. The following authorities appear to us to sustain the views above expressed. 1 Dill. Mun. Corp. § 41; Kayser v. Trustees, 16 Mo. 88; Com. v. Judges, 8 Pa. St. 391; People v. Fleming, 16 Pac. Rep. 298;City of Burlington v. Leebrick, 43 Iowa, 252;City of Wahoo v. Dickinson, (Neb.) 36 N. W. Rep. 813.

2. It is next claimed that the sections of the Code above cited are unconstitutional, because no provision is made therein for notice of the proceedings in the district court to the persons owning property in the territory proposed to be organized into a corporation, or in the territory sought to be annexed to an existing municipal corporation. It is said by counsel in argument that the creation of a municipality, or an extension of the boundaries of one already created,...